Sherry F. Colb

Supreme Court Considers Constitutionality of Juvenile Life Without Parole

By SHERRY F. COLB
Wednesday, August 19, 2009

This coming term, the Supreme Court will consider the important companion cases of Sullivan v. Florida and Graham v. Florida. Together, they raise the question whether a sentence of life imprisonment without parole for a non-homicide offense committed by a juvenile offender violates the Eighth Amendment prohibition against cruel and unusual punishments.

As a policy matter, I am sympathetic with the ultimate objective of reducing the severity of punishments in the U.S. However, as a legal matter, I will argue in this column that the Eighth Amendment case against juvenile life without parole is quite weak – given the Court's precedents as well as the nature of the flaws inherent in harsh sentencing more generally.

The Policy Case Against Long Prison Sentences

To avoid my being misunderstood as a proponent of long sentences, let me emphasize here that I am not. In 1998, I interviewed recidivist child-molester Leroy Hendricks at his civil confinement program for sexually violent predators. One of the things he said that struck me as very insightful was that once a person has spent ten years inside a prison, he is extremely unlikely to be able, successfully, to re-integrate himself into free society. Life, as he put it, will have already passed that person by, the world having changed too much for him to catch up. This statement, if true, provides a pragmatic argument against long sentences for people who will someday have to rejoin the outside world. And what about sentences of life-imprisonment?

If someone will spend the rest of his life behind bars, we do not need to worry about re-entry difficulties. But we do, then, need to ask ourselves what the purpose of that confinement is. It is plainly retributive – a person who has committed a serious offense will, by design, suffer greatly by being deprived of both freedom and most contact with the outside world for the rest of his life. But is the desire to make the person suffer for his actions a sufficient basis for removing him from society for his entire life?

The answer would depend, it seems, on whether we believe that people change over time. If we think that a person who commits a murder at Time 1 remains precisely the same murderer-deserving-of-serious-punishment ten, twenty, and thirty years later, then it is sensible to have his punishment last for the entirety of his life. But if, on the other hand, we believe that people change over time – into different, perhaps more passive, reflective, or gentle people – then ruling out re-entry into society for them could be a mistake. It could prevent them from doing what it takes to redeem themselves after the injuries they previously inflicted and from growing into different sorts of people. It rules out the possibility of rehabilitation.

In addition to rejecting the rehabilitative role of punishment, a sentence of life imprisonment also imposes great costs on society generally, and on specific communities and families in particular. I still recall from when I lived in Manhattan that once a week, a few blocks from my apartment building, women and children – mostly members of minority groups – would line up for a long bus ride that had as its destination the penitentiary. These faithful family members of prisoners never gave up on their loved ones and though they themselves were innocent, they too suffered along with the people sentenced to serve time. An individual is not an island, and it is rarely possible to take one person out of commission without generating spillover effects on innocent others.

One answer to these concerns is to note that violent criminals may require incapacitation. That is, prison serves not only to punish and (in theory) to rehabilitate offenders, but also to prevent them from harming others. This objective of imprisonment is an important one. To the extent that we can predict future antisocial conduct, one important indicator is past behavior. A person who commits a violent crime has thus evidenced that he cannot be trusted with freedom.

This answer, however, ignores the fact that people do change over time. A man who is violent at the age of 25 is likely to slow down by the time he reaches 40. And it is difficult to imagine that, unless he belongs to the world of organized crime, he will continue to pose a threat to those around him when he reaches 60 or 65. One might even note that with the decline in testosterone over the male lifespan, the odds that such a man will behave violently diminish substantially, even when he begins in a very bad place. To rest sentences of life imprisonment on an incapacitation theory is therefore, in most cases, to ignore the realities of the human life cycle.

Life Imprisonment for Youthful Offenders

Though I have made clear above that I oppose long sentences in general and life imprisonment in particular, as a policy matter, I am nevertheless left strangely unconvinced by the arguments that have been marshaled to support the claim that juvenile life imprisonment violates the Eighth Amendment.

A principal argument, and perhaps the most powerful, made in fascinating detail in an amicus brief filed in the Sullivan and Graham cases by the AMA (American Medical Association) and the American Academy of Child and Adolescent Psychiatry, has to do with brain development. As most of us probably suspected all along, adolescent brains are different from adult brains, and the result is that adolescents have a more difficult time controlling their impulses and regulating their own emotional states. They are also more vulnerable to the temptations of risk-taking behavior, the rewards of peer approval, and other potential triggers of anti-social conduct. As a result, the argument goes, adolescents who commit violent crimes are generally not as culpable (because they are not as capable of restraining themselves under a given set of circumstances) as adults who commit serious crimes. They are, moreover, more likely to evolve into better people later and therefore need not be incapacitated indefinitely.

One problem with this argument is that it proves too much. If the adolescent brain is functionally "impaired," in an important sense, compared with the adult brain, then the Eighth Amendment should ban far more than life imprisonment for non-homicide offenses for juveniles: It should ban that punishment for all offenses committed by juveniles.

The distinction between homicide and non-homicide offenses becomes immaterial if the problem with sentencing juveniles to life imprisonment is their diminished capacity. A homicidal adolescent is no more able to control his impulses than a raping adolescent is to control his; the distinction between one crime and the other will likely have more to do with opportunity and surrounding circumstance than with capacity and thus culpability.

Thus, an argument against life imprisonment for juvenile non-homicide offenders is no less convincing as an argument against life imprisonment for juvenile murderers. Accordingly, it is unsurprising that the movement against life imprisonment of juveniles generally opposes both.

The specific selection of non-homicide offenses to limit the argument thus seems more of a marketing tool than a principled decision – and if the Eighth Amendment argument prevails in these cases, the next step would seem almost inevitable: advocates will claim that the Eighth Amendment necessarily bars life without parole for all juvenile offenders.

In addition, if juvenile offenders suffer from a diminished capacity to control their behavior, then sentences that fall far short of life imprisonment, too, could qualify as unduly harsh and unconstitutionally disproportionate under the Eighth Amendment. For example, any prison sentence for any offense by an adolescent that approaches the sentence for a parallel adult offender might appear to be disproportionate, given the likely disparity in relative capacity. Once again, the argument about juvenile capacity has no obvious stopping point at either non-homicide offenses or at life imprisonment itself.

A second problem with the argument about juvenile capacity is that it fails to capture what we know about adult offenders: Though youth is a corollary of crime, the adults who do commit anti-social acts appear to have much in common with adolescents. To put the point differently, though adults in general are different from adolescents, the adults who commit violent crimes may share far more with violent adolescents than they do with mature, well-adjusted adults. Violent crime frequently reflects a failure of impulse control, combined with an overly optimistic assessment of the likelihood of escaping ill consequences – traits that define adolescence. The sort of incapacity that plagues many youthful offenders is, for that reason, not likely to be unique to such offenders in the prison population.

To underline this second problem, we learn from a study published this year in the American Journal of Public Health that a quarter of prison inmates have a history of chronic mental illness that preceded their arrest. Adults who suffer from chronic mental illness presumably lack the capacity to exercise the self-control of a healthy and normal adult. The same may be true for the mentally retarded, though their prevalence in the prison population is lower. It is accordingly misleading to suggest that actual, incarcerated adult offenders could have readily exercised self-control in a manner unavailable to youthful offenders. Many people convicted of serious crimes could make a persuasive argument that their capacity to regulate their own behavior and to assess costs and benefits accurately is impaired. Yet such people routinely receive long and unforgiving prison sentences.

A third problem for the argument about minors' diminished capacity is evident in noting the nature of the incapacity: According to the amicus brief referenced above (filed by the AMA and the American Academy of Child and Adolescent Psychiatry), "[t]he difference between adolescent and adult behavior … is not a function of adolescents' inability to distinguish right from wrong … but rather from psychosocial limitations in their ability to consistently and reliably control their behavior." (emphasis added).

Since Congress passed the Insanity Defense Reform Act of 1984, however, the prevailing approach to incapacity has centered on cognition – the ability to distinguish between right and wrong – and not on control. This is in part because it is difficult to distinguish in a reliable way between a person who could not control herself and a person who simply did not control herself. The diminished capacity of juveniles, then, is of the sort that has fallen out of favor as a basis for mitigating and excusing anti-social conduct (at least outside the death penalty context).

A fourth problem with the argument might seem, at first glance, to recommend it. By contrast to other sorts of offenders, minors who commit crimes may not, since Roper v. Simmons, be sentenced to death. This categorical exclusion of minors, like the categorical exclusion of the mentally retarded in Atkins v. Virginia, represents an acceptance of the idea that there are categories of people who simply cannot be sufficiently culpable to deserve the ultimate penalty of death. The Court's embrace of this idea might appear to open the way for similar arguments about life imprisonment.

What makes this appearance deceptive, however, is that the Court's ruling in Atkins rests firmly on the "death is different" idea, which treats life imprisonment as not simply distinct in degree from execution, but different in kind. Therefore, if youths and mentally retarded people fall short – even to a minor degree – of the capacities that adults of normal intelligence have, this is reason enough to rule out execution, in particular, for them. But one of the things that has allowed the Court to rule out execution for such people is the very availability of life imprisonment without the possibility of parole.

That is, to the extent that execution is meant to serve the function of incapacitating irredeemably violent people forever, the availability of life imprisonment without the possibility of parole provides a roughly equivalent substitute for that. Without this substitute, the inability to execute youthful offenders – in at least some cases – might appear far more threatening.

Death is Different

One possible response to the last point is that execution has long been unavailable for non-homicide crimes (with the possible exception of treason), and this helps account for why this case focuses on life for non-homicides (where one cannot claim the need for a functional substitute for execution).

Or, to make this argument more affirmatively, one could argue that because the most severe penalty available for offenses committed by a juvenile is life imprisonment without the possibility of parole, this penalty should be reserved for homicide, just as – in the case of adults – the death penalty is reserved for homicide.

The main problem with this argument has less to do with logic than with Court precedent. In carving out special rules for the death penalty, including the rule establishing its unconstitutionality with respect to crimes less serious than murder, the Court has consistently relied on the idea that death is qualitatively different from any term of imprisonment. When litigants have attempted to move the Eighth Amendment proportionality principle from the death penalty context to that of incarceration, the Court has generally rejected the move in application.

In Rummel v. Estelle, for example, the Court in 1980 upheld a life sentence in a recidivist statute for a defendant convicted of three nonviolent property crimes (netting less than $300 total). The Court did strike down a life-without-parole sentence (for a recidivist offender convicted of writing a bad check) in Solem v. Helm a few years later, giving some hope that the Eighth Amendment could become a vehicle for invalidating long sentences. However, in 1991, in Harmelin v. Michigan, the Court upheld a mandatory sentence of life without parole for the possession of over 650 grams of cocaine, even as three Justices in the majority agreed with the dissent that some sentences might be so long relative to the seriousness of a crime that they would violate the Eighth Amendment. Finally, in Ewing v. California., the Court upheld the California "three strikes" law under which the petitioner was sentenced to 25-years-to-life for stealing three golf clubs worth $399 each.

None of these cases rules out the possibility that life imprisonment for a juvenile offender's non-homicide crime violates the Eighth Amendment. Nonetheless, it seems counterintuitive for the Court to maintain that life imprisonment is constitutionally excessive punishment for a juvenile rapist, but constitutionally unobjectionable for an adult nonviolent property or drug possession offender. On the other hand, of course, the Supreme Court did grant certiorari in two cases of juvenile life-without-parole sentences in which the government won below, so it may – not for the first time – decide to take a counterintuitive approach in this instance.

My Hope

Despite what I have said here, I hope that the Supreme Court says that life imprisonment without the possibility of parole is unconstitutional for non-homicide offenses committed by juvenile offenders. The reason for my hope is several-fold. First, it is high time that the Court actively embraced the principle that a prison sentence can be disproportionately lengthy, whether the measure of disproportion is capacity or whether it is the seriousness of an offense.

Second, life imprisonment without the possibility for parole is almost always a mistake, given the fact that people – both children and adults – change over time; the impact of such sentences on society, communities, and families; and the possibility of redemption. If the Court does strike down the sentences of the two offenders who brought their appeals, moreover, I predict that the Court will soon be willing to reconsider harsh sentences across the board. This is precisely because the arguments for distinguishing juvenile non-homicides as a special case are, indeed, as unpersuasive as I have argued that they are in this column.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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